N.J. appeals court reprimands lawyers in Merck Fosamax case

By Michael Phillis

state house bureau |

The Record

After a case had been fully reviewed and an appellate court was days away from releasing its opinion, the judges were told that the complex lawsuit against a pharmaceutical company had actually been settled months earlier, according to an opinion released Wednesday.

The court responded by publicly admonishing both sides for failing to inform it immediately and therefore wasting numerous hours of the court’s time.

The case had the potential to become a bellwether for the more than 3,000 other pending suits against drug maker Merck for one of its osteoporosis medications. Along with its importance, the case had a large amount of paperwork accompanying the arguments – the lawsuit included 5,000 pages of transcripts, for example.

The settlement was reached in January but the appeals court was not notified until April, said the opinion, which provided no details of the terms of the private settlement.

In a brief five-page opinion, the appeals court said it should have been informed much sooner of the settlement in the case, which dealt with issues involving the osteoporosis drug Fosamax. The medication caused blood circulation issues around the jaw bone, according to the plaintiff. This problem, called osteonecrosis, can cause bone to break down faster than it is replaced.

“We have decided not to file our opinion on the merits and now write to dismiss the appeal with the emphatic reminder that counsel must advise this court in a far more timely manner of a settlement or serious settlement discussions so that scarce judicial resources are not needlessly wasted,” the court wrote in its first paragraph.

The scolding was part of a published case, meaning that it is now considered precedent and becomes case law.

This was the first time in about a decade the court has admonished lawyers in a published opinion for not informing it of a settlement, said Jeffrey S. Mandel, a Rutgers law professor and author of the book “New Jersey Appellate Practice.”

“There have been several unpublished decisions warning lawyers,” Mandel said. “It appears the court had had enough.”

Mandel said he emphasized to his students the importance of informing the court when a case is settled.

The case was considered important because it is one the first tested of the approximately 3,200 pending cases against Fosamax.

The trial court was notified of the settlement of this case and about 250 others but the appeals court was not informed, the opinion said.

“We have previously emphasized in published decisions the importance of notifying us when a settlement seems imminent,” the opinion said.

Just before the court was set to release its opinion in the case, Merck’s lawyers asked the court to withhold it because of a chance that the “settlement may not be consummated if the panel’s opinion is released,” Judge Ellen Koblitz wrote for the court.

The judges considered releasing the opinion anyway but decided not to, Koblitz wrote.

A spokeswoman for Merck, Lainie Keller, said the company had the utmost respect for the appellate court. “The company believed that it had notified the court by letter on January 9, 2014 of the pending settlement and had requested that the matter be stayed, and sincerely regrets that this communication was not received,” Keller said in an emailed statement.

The law firm for the plaintiff, Seeger Weiss, LLP, did not comment.

The appellate court is busy, the judges said, with thousands of new claims filed each year. Some of these cases involve incarcerated people “and a favorable result could result in their freedom,” the court said. Instead the court had to expend its resources on an already settled matter.

“For attorneys in a civil case in an appeal with a voluminous record to neglect to notify us of a settlement for four months is unconscionable,” the opinion said.

The three-judge panel considered other punishments but decided against it.

“Because of the enormous amount of time needlessly expended in this matter, we have seriously considered the imposition of sanctions,” Koblitz wrote, noting that the court instead “determined that the publication of this decision is sufficient deterrent to repetition.”

N.J. appeals court reprimands lawyers in Merck Fosamax case

By Michael Phillis

state house bureau |

The Record

After a case had been fully reviewed and an appellate court was days away from releasing its opinion, the judges were told that the complex lawsuit against a pharmaceutical company had actually been settled months earlier, according to an opinion released Wednesday.

The court responded by publicly admonishing both sides for failing to inform it immediately and therefore wasting numerous hours of the court’s time.

The case had the potential to become a bellwether for the more than 3,000 other pending suits against drug maker Merck for one of its osteoporosis medications. Along with its importance, the case had a large amount of paperwork accompanying the arguments – the lawsuit included 5,000 pages of transcripts, for example.

The settlement was reached in January but the appeals court was not notified until April, said the opinion, which provided no details of the terms of the private settlement.

In a brief five-page opinion, the appeals court said it should have been informed much sooner of the settlement in the case, which dealt with issues involving the osteoporosis drug Fosamax. The medication caused blood circulation issues around the jaw bone, according to the plaintiff. This problem, called osteonecrosis, can cause bone to break down faster than it is replaced.

“We have decided not to file our opinion on the merits and now write to dismiss the appeal with the emphatic reminder that counsel must advise this court in a far more timely manner of a settlement or serious settlement discussions so that scarce judicial resources are not needlessly wasted,” the court wrote in its first paragraph.

The scolding was part of a published case, meaning that it is now considered precedent and becomes case law.

This was the first time in about a decade the court has admonished lawyers in a published opinion for not informing it of a settlement, said Jeffrey S. Mandel, a Rutgers law professor and author of the book “New Jersey Appellate Practice.”

“There have been several unpublished decisions warning lawyers,” Mandel said. “It appears the court had had enough.”

Mandel said he emphasized to his students the importance of informing the court when a case is settled.

The case was considered important because it is one the first tested of the approximately 3,200 pending cases against Fosamax.

The trial court was notified of the settlement of this case and about 250 others but the appeals court was not informed, the opinion said.

“We have previously emphasized in published decisions the importance of notifying us when a settlement seems imminent,” the opinion said.

Just before the court was set to release its opinion in the case, Merck’s lawyers asked the court to withhold it because of a chance that the “settlement may not be consummated if the panel’s opinion is released,” Judge Ellen Koblitz wrote for the court.

The judges considered releasing the opinion anyway but decided not to, Koblitz wrote.

A spokeswoman for Merck, Lainie Keller, said the company had the utmost respect for the appellate court. “The company believed that it had notified the court by letter on January 9, 2014 of the pending settlement and had requested that the matter be stayed, and sincerely regrets that this communication was not received,” Keller said in an emailed statement.

The law firm for the plaintiff, Seeger Weiss, LLP, did not comment.

The appellate court is busy, the judges said, with thousands of new claims filed each year. Some of these cases involve incarcerated people “and a favorable result could result in their freedom,” the court said. Instead the court had to expend its resources on an already settled matter.

“For attorneys in a civil case in an appeal with a voluminous record to neglect to notify us of a settlement for four months is unconscionable,” the opinion said.

The three-judge panel considered other punishments but decided against it.

“Because of the enormous amount of time needlessly expended in this matter, we have seriously considered the imposition of sanctions,” Koblitz wrote, noting that the court instead “determined that the publication of this decision is sufficient deterrent to repetition.”